2004 PLP 15 (SCMR)

ABDUL HAMEED DOGAR, J.

Leave to appeal is sought against the order dated 27-1-2003 passed by a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Miscellaneous No.3356-B of 2003 filed by the petitioner for grant of bail after arrest on medical grounds was dismissed.

2. The fateful episode took place at 11-45 a.m. on 28-4-2003 near G.P.O. Gate in front of Lahore High Court premises wherein Mst. Shumaila alias Gogi, having pregnancy of eight months attributed a role of ineffective firing at Mst. Naushaba Lateef whereas his son Imran Firduous Paul was alleged to have fired a shot from his 222 rifle which hit Mst. Shumaila alias Gogi on the right side of her abdomen who succumbed to the injuries.

3. The petitioner preferred application for grant of bail after arrest before the trial Court on medical grounds which was declined. Thereafter, he preferred criminal miscellaneous application urging for bail on the same grounds before the learned High Court, which too, was dismissed vide impugned order.

4. This petition had come up for hearing during summer vacations and interim bail was allowed to the petitioner on medical grounds on 24-7-2003.

5. It is vehemently contended by the learned counsel for the petitioner that he being a sick person and suffering from serious ailment of heart disease requires bypass surgery as has been opined by two separate Medical Boards, consisting of three and six Cardiologists respectively which is a sufficient ground for confirmation of bail. According to him, even after the release of the petitioner on bail, his condition had deteriorated and because of acute renal insufficiency, CABG (Coronary Artery Bypass Grafting) has become difficult.

6. Messrs Muhammad Munir Paracha, learned Advocate Supreme Court for the complainant and Dil Muhammad Tarar, learned Advocate Supreme Court for the State have opposed the confirmation of bail as according to them bypass surgery can be conducted inside the jail premises.

7. We have considered the contentions raised at the bar and have gone through the entire record with their assistance. The petitioner as an under trial prisoner was examined on 2-6-2003 by a Medical Board there consisting of three doctors, naively, Dr. Muhammad Azhar, Professor of Cardiology, Dr. Nadeem Hayat Mallick, Professor of Cardiology and Abdul Waheed, Associate Professor of Cardiac, Surgery who had opined that he was suffering from a severe heart disease and was at high risk of dying suddenly. He was also suffering from Diabetes. With severe diabetic complications. He was advised to undergo Bypass Operation as soon as possible. Thereafter, on the directions of the learned High Court, he was again examined by a Board consisting of six doctors, namely Dr. Muhammad Zahar, Professor of Cardiology, Dr. Abdul Waheed, Associate Professor of Cardiac, Dr. Nadeem Hayat Malick, Associate A Cardiology, Dr. Muhammad Zubair, Associate Professor of Cardiology, Dr. Saqib. Shafi, Associate Professor Cardiology and Dr. Mohsin Nazeer, Associate Professor Cardiology of Punjab Institute of Cardiology, Lahore, who too, opined that the petitioner needed bypass surgery as a treatment because the arteries supplying the heart were narrowing and had damaged heart muscles. He was again sent to the hospital in a serious condition as he, by that time, had developed renal problems and was accordingly examined in the Punjab Institute of Cardiology, Lahore, on 11-7-2003. Professor of Cardiology confirmed the above position of the petitioner and referred him to Nephroldgist of the Services Hospital for evaluation of renal function and regarding his fitness for bypass surgery. Since the Nephrologist was not posted in the Services Hospital, as such, he was referred to Meyo Hospital. Even after the release on bail, the condition of the petitioner still deteriorated so much as that on 2-9-2003 Assistant Professor Muhammad Azhar of Nephrologist of Federal Postgraduate Medical Institute, Sheikh Zaid Hospital, Lahore, has opined that he carries moderate risk of acute renal insufficiency if CABG (Coronary Artery Bypass Grafting) is required. The risk VRS benefit of surgery should be discussed and explained to family:

8. In view of what has been mentioned above, the petition is converted into appeal and is allowed. Ad interim bail already granted to the petitioner on 24-7-2003 is confirmed on the same terms and conditions. N.H.Q./F-120/S. Bail granted.